The Homes (Fitness for Human Habitation) Bill
After several false starts, Karen Buck MP's Homes (Fitness for Human Habitation) Bill 2017-19 (the Bill) now has government support, and the bill is, at the time of going to press, awaiting its second reading in the House of Lords, which will be held on 23 November 2018.
The effect of the bill, if enacted, will be to amend sections 8 - 10 of the Landlord and Tenant Act 1985 to modernise the definition and the requirements for 'fitness for human habitation'.
If enacted, landlords of all residential housing, both in the private rented and the social housing sectors, would be under an obligation to ensure that residential properties are fit for human habitation at the commencement and for the duration of the tenancy.
The Bill would give tenants and the local housing authority the ability to take court action to enforce these standards and seek remedies such as specific performance against a landlord.
Current law: s8 Landlord & Tenant Act 1985
Section 8 is an implied term that obliges all landlords of residential housing that the property must be in a condition fit for human habitation at the commencement, and for the duration of the tenancy. However, the section is limited to homes with annual rents of less than £80 in London and £52 elsewhere- figures that haven't been revised since the 1950s.
Purpose of the bill
The purpose of the bill is to modernise the definition and requirements for 'fitness for human habitation' and to provide tenants with a means to enforce these requirements themselves. Despite failed attempts in the past, the Bill reached its first reading in the House of Lords on 29 October 2018 and awaits its second reading on 23 November 2018.
The Bill's jurisdiction covers England and Wales but the content of the Bill only covers tenancies in England. Wales have already enacted similar provisions in the Renting Homes (Wales) Act 2016.
Currently a landlord's predominant obligation in relation to property standards is section 11 Landlord and Tenant Act 1985 which relates to the structure of the property and ensuring that there is adequate heating and hot water facilities. The Bill goes beyond structural issues and inserts the addition of hazards and potential hazards into the new definition of 'fit for human habitation' which would become section 10 of the amended Landlord and Tenant Act 1985.
Currently, the main recourse for a privately renting tenant is to have the property inspected using the Housing Health and Safety Rating System (HHSRS) under the Housing Act 2004. However, an inspection will only take place where the council exercises its powers to do so following a complaint. Often before this inspection takes place, tenants are served with a notice to quit from the landlord to terminate the tenancy.
Council tenants cannot currently do anything as a local authority cannot take enforcement action against itself.
Homes (Fitness for Human Habitation) Bill 2017-19
The Bill creates Section 9A which imposes an obligation on the landlord to ensure that the residential dwelling is fit for human habitation at the commencement and for the duration of the tenancy.
Leases the Bill would apply to:
- Tenancies of less than 7 years that are granted after the Bill comes into force (including leases of more than 7 years where there is a break that can be exercised prior to the 7th year of the term);
- new secured, assured or introductory tenancies for a fixed term of 7 years of more granted after the Bill comes into force;
- periodic tenancies have 12 months from the Bill coming into force to become fit for human habitation before the obligation is effective and continues for the tenancy; and
- renewal of fixed term tenancies after the enforcement of the Bill will be treated as a grant of a new tenancy.
The Bill will not apply to fixed term tenancies until they are renewed, nor does it apply to tenancies that were agreed prior to the commencement date but occupation occurs after.
There are limitations to the landlord's obligation under 9A(2) and (3) as a landlord is not obliged to reinstate the property in the event of destruction or if the tenant's own breach has caused the unfitness for habitation. The landlord will not be able contract out of this obligation, and cannot impose penalties on the tenant for attempting to enforce this obligation.
The Bill will provide tenants and the local housing authority with the ability to take court action against the landlord to fulfil their obligation under Section 9A. The Bill gives courts the express power to use specific performance as a remedy regardless of any equitable rule restricting its scope.
The landlord and his appointed agents are given the power to enter the dwelling to inspect the condition and state of repair provided at least 24 hours' notice is given and they attend at reasonable times.
What constitutes fit for Human Habitation?
Section 10 of the current Landlord and Tenant Act 1985 contains a list of matters that constitute human habitation such as 'ventilation' and 'repair'. The Bill amends Section 10 to include 'any prescribed hazard' and this definition is taken from Section 2 of the Housing Act 2004 which is the basis for the HHSRS. Hazards can include anything that interferes with, or puts at risk, the health and safety of the tenants such as the absence of a smoke detector or a badly maintained ceiling. The impact is that rather than having to ask councils to come to the property to review the hazards, tenants can go to the courts directly.
The effect of this Bill is to give tenants a much stronger method of enforcing the landlord's obligations to keep properties fit for human habitation. It will also greatly increase the number of tenants who will benefit from protection. Competent landlords should have nothing to fear.